Legalviews Personal

If you are engaged in litigation involving possibly bulky records, watch out!

A very recent decision discusses some of the problems involved. It imposes personal penalties, and hints at much heavier penalties the next time that this occurs.

A multi-person client cannot fulfil its duties of record discovery unless at least one of its executives and also at least one of its lawyers, each does two things. First, each takes full personal hands-on instruction and control. Second, each keeps supervising (or doing the work personally). So four things must be done for some time. If all those things are not done by both people, a disaster is almost certain.

Quite apart from losing the lawsuit, the organization and several of its people will likely suffer personal penalties. One of those could well be a conviction for perjury, as an affidavit of records must be sworn. And anyone who aids or abets commission of a crime is a direct party and also guilty of the crime. The maximum penalty for perjury is fourteen years in a federal penitentiary, so it is one of the most serious criminal offences. Perjury is highly likely to ruin one’s career, and membership in any profession.

The non-criminal penalties for an inadequate affidavit of records are heavy for the deponent, for the lawyer, and for anyone who gave the deponent reckless or untrue information. Those duties and penalties are not new. They are almost 200 years old, and most have been very clear since 1940.

The party who is right in the lawsuit could well lose the suit and pay heavy costs. How? Simply by negligent preparation before swearing an affidavit of records. That party will be forbidden to give the court evidence which could well have won the lawsuit. That disability is automatic under the Rules. And a judge or jury is entitled to disbelieve a witness entirely, if partial deliberate or reckless untruth by him or her is apparent.

Amazingly, when document discovery is sloppy, often the overlooked records would help the sloppy party, not hurt it. They were not deliberately hiding it. Honest people need all the records they can find.

In many lawsuits, looking for records is long, hard, and even unpleasant. People with low tolerance for boring picky details cannot possibly do the job. Nor can people who mean well and work hard, but do not understand fully the principles involved.

Many a lawsuit involves thousands of relevant and material records, and ten times as many possibly material ones. One must sift the latter, to see which ones actually are material. Many of the records will be solely electronic. In those suits, it is probably impossible to do a proper job of finding records by using only paper-based methods, or using only electronic search methods. And organizing and later retrieving records is certainly impossible if one uses only one method.

Searching for items on a certain topic by asking a computer to look for certain words or phrases will likely omit about a third of the highly-relevant records, especially where brief personal communications or notes are involved. For example, there are dozens of words or phrases or allusions which can refer to a leaking supply pipe, or to a customer unhappy about the result. Both computer methods and various types of manual methods are still vital for the search.

That does not mean that every one of eighty thousand possibly-relevant records has to be read by some poor human being. But some manual initial searching and planning can show what authors, addressees, locations, groups of people, or general types of communication, are likely to contain material records. For example, if a number of important records came from one place or one search method, then all the others thus or there found should be looked at. In light of such experiments and delving, there may be two or three thousand records which live people should skim or sift. For most of them, that will be quick, and the whole time spent will not be as long as it sounds.

The whole process is a bit like prospecting for gold. It takes science, panning and digging in the field, and experience.

The recent decision mentioned above is H2 Canmore Apts. v. Cormode & Dickson Constr. Edm. 2024 ABKB 424 (July 15). Watch the cite carefully; there are several recent decisions with that same name.

In case you think that these problems and methods are new, debatable, or insoluble, see my textbook: Systematic Advocacy: Planning to Win, chap. 7, Parts H, I, J, and N (Juriliber 2017). Especially Part I. .

– Hon. J.E. Côté

SAME OLD SLOPPY DISCOVERY OF RECORDS